Concealed carry is a hot topic in Congress now with a bill coming out of the House called the National Right-to-Carry Reciprocity Act of 2011 (H.R. 822). This bill would extend conceal carry rights across state lines, allowing a legal gun owner who lives in Colorado to freely move about the country with his or her legal firearm and enter, say Illinois. The bill does not change the law in regards to obtaining a permit in your home state, it only prevents the other 49 states from infringing on your Second Amendment rights upon entering their state. As with all issues Second Amendment, our Dave Kopel weighed in on the issue. On Monday he was featured in the Cato Daily Podcast to discuss H.R. 822 and its implications on gun rights and interstate travel rights.

Perhaps the most interesting part of the podcast occurs when Dave recalls a question he received from Rep. Mike Quigley while giving testimony on 822 in the House subcommittee. Rep. Quigley points out that conservatives in Congress like to talk about states’ rights, but when it comes down to it, states’ rights are merely a convenience issue for them. For example, doesn’t H.R. 822 challenge states’ rights?

You’ll have to listen to the Cato podcast to get Dave’s answer. It’s truly fascinating and extremely insightful.

In 1980, one of the major party presidential nominees opened his general election by delivering a speech in a small town in the Deep South that just by coincidence happened to be the national headquarters of the Ku Klux Klan. That same candidate had previously complained about federal housing policies which attempted “to inject black families into a white neighborhood just to create some sort of integration.” He argued that there was “nothing wrong with ethnic purity being maintained.” That candidate was President Jimmy Carter, the Democratic nominee.

Carter kicked off his general election campaign with a speech in Tuscumbia, Alabama. Although the Klan’s headquarters were located in that small town, Carter was not appealing to the Klan vote, but was instead hoping to win the votes of the more than 40,000 people who saw him speak at the town’s annual Labor Day fair. Perhaps Carter chose to start his general election campaign in rural Alabama because he recognized that Reagan might take away some of the southern states that had been crucial to Carter’s win in 1976. As things turned out, Carter was right to be concerned; he ended up losing Alabama by 1%.

After the Republicans nominated Ronald Reagan in Detroit in July, he gave his first post-convention speech in New Jersey, near the Statue of Liberty. While the informal opening date of the general election campaign is traditionally Labor Day, Reagan continued to campaign during August, and on August 3, 1980, spoke at the Neshoba County Fair in Mississippi. The Neshoba Fair is large and popular, which probably explains why Democratic Senator John Glenn campaigned there in 1983, when seeking the presidential nomination, and why Democratic presidential nominee Michael Dukakis spoke there during the 1988 general election campaign, shortly after being nominated by the Democratic Convention.

Seven miles away from the fairgrounds is the town of Philadelphia, Mississippi, where three civil rights workers were murdered in 1964. Unfortunately, it would be difficult to find many places in Alabama or Mississippi which are not within seven miles of the scene of some infamous past act of racial violence, such as a lynching.

Reagan’s Neshoba speech was 33 paragraphs, consisting almost entirely of remarks about economics and jokes about Jimmy Carter. In the middle of the speech, he discussed his experience with welfare reform as Governor of California. He began by rebutting the idea that people on welfare are lazy and don’t want to work. To the contrary, said Reagan, they were just trapped by bureaucracy. Welfare, education, and other programs would work better for their beneficiaries if they were managed by state and local governments, rather than federally:

“I don’t believe stereotype after what we did, of people in need who are there simply because they prefer to be there. We found the overwhelming majority would like nothing better than to be out, with jobs for the future, and out here in the society with the rest of us. The trouble is, again, that bureaucracy has them so economically trapped that there is no way they can get away. And they’re trapped because that bureaucracy needs them as a clientele to preserve the jobs of the bureaucrats themselves.

“I believe that there are programs like that, programs like education and others, that should be turned back to the states and the local communities with the tax sources to fund them, and let the people [applause drowns out end of statement].

“I believe in state’s rights; I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I’m looking for, I’m going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.”

A rather mainstream sentiment, even if some devotees of federal centralization might disagree with it. Indeed, the bipartisan welfare reform law signed by President Clinton carried out Reagan’s vision, by returning much of the control of federal welfare programs to the states.

Some ignorant people claim that “state’s rights” is just a euphemism for racism. The phrase certainly has been sometimes been misused that way, but it is false to claim that the phrase is necessarily racist. Rep. Barney Frank (D-Mass.) introduced the “States’ Rights to Medical Marijuana Act” in the 107th, 108th, and 109th Congresses.

Reagan ended up winning Mississippi by 1.4% of the vote. Both Reagan and Carter were politically smart to take the opportunity to speak before large audiences in the rural South in states where the election would be close. It would be false to say that Carter was appealing to racists because he kicked off his campaign in a town that was the current home of the Ku Klux Klan, and it would be equally false to say that Reagan was appealing to racists because he mentioned his lifelong theme of state’s rights at a county fair several miles away from the site of an infamous crime 16 years earlier. Today, columnists and commentators who tell you that the ”kick off” for Reagan’s general election campaign was an appeal to racists are demonstrating that they don’t bother to check the facts before they make extreme allegations. People who are making coded appeals to racism don’t tell their audience that the “stereotype” of welfare recipients is wrong, and that “the overwhelming majority” of them want to work.

This week Scotusblog is running a series of essays, “The Constitutionality of the Affordable Care Act.” Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to come, that will be posted throughout the week. My essay examines some of the questions that the Court will face in granting cert., the tax issue, and the issue of the state coercion in Obamacare’s new Medicaid mandates. Conspirators Adler, Kerr, and Somin are among some other scholars who have essays that should be posted soon.

Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18. The Necessary and Proper Clause has been called both an “elastic clause” and a “sweeping clause,” and many have claimed it grants vast power to Congress. For example, a recent Supreme Court case, United States v. Comstock, stated that the “Necessary and Proper Clause grants Congress broad authority to enact federal legislation.”

In fact, most federal regulations today are justified by the Necessary and Proper Clause. They are said to be within Congress’s Interstate Commerce Power— but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States”). Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution” the power to regulate commerce.

Now, here’s the irony of the situation: Far from granting “broad authority” to Congress, the truth is that Necessary and Proper Clause grants no power at all. It is placed at the end of Article I, Section 8 as an explanation—that is, a “recital.” A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document. Another example of a recital in the Constitution is the Preamble.

In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record. The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994). It focused on the meaning of “proper.” A decade later, I delved into the historical record. I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another. I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles here and here.

Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject. (We all have differing political views, by the way.) The book is called The Origins of the Necessary and Proper Clause, and it was published last year by Cambridge University Press.

Here’s what we found:

* The Clause is a mere recital. It informs the reader how to interpret congressional authority. It does not grant any power.

* The term “necessary” tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).

* The Clause does this by telling the reader that the legal “doctrine of incidental powers” applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power. For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce. But Congress cannot regulate the entire manufacturing process.

* The word “proper” means that a law must comply with Congress’s fiduciary (public trust) responsibilities. A law is not “proper”—and is therefore unconstitutional— if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.

* Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.

Recently, Dave Kopel, the Independence Institute Research Director, filed an amicus curiae brief in the most important anti-Obamacare lawsuit. He did so on behalf of Professors Lawson, Seidman, and me. The goal? To correct the record and inform the courts what the Necessary and Proper Clause REALLY means.

Remember when I told you a few days back that “extraordinary claims demand extraordinary evidence?” Our resident constitutional law scholar and senior fellow Professor Rob Natelson agrees with me. As Rob puts it in this insightful article featured in both the Colorado Springs Gazette and the Denver Daily News, the Constitution’s commerce power does not permit ObamaCare. (Nor does anything else in the constitution for that matter). Rob’s article is really worth a read. Even if you think you know everything about our constitution, this article will enlighten you. It’s unfortunate the ObamaCare apologists will close their eyes and plug their ears to all of Rob’s evidence. It’s better when you don’t know these stubborn facts right?

One of the big under-covered stories in this election is the huge shift toward Republicans in state legislatures. The change could portend big changes for national politics, because Republican state lawmakers are more likely to sign onto federalism (“states rights”) initiatives than Democrats are. Even though the U.S. House is now Republican, a liberal President and Senate will block GOP-led efforts to curb federal overreaching — thereby encouraging state action instead.

* Formal applications, under Article V of the U.S. Constitution, for a “convention for proposing amendments” — a device the Framers inserted into the Constitution in case the states ever needed to rein in an out-of-control Congress;

* Rejections of federal funds and federal mandates;

* More state lawsuits against federal overreaching; and

* Resolutions claiming sovereignty over land within state boundaries held by the federal government in violation of the Constitution.

My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum.

The court entirely rejected the administration’s claim that the penalty for disobeying the mandate is justified under the federal tax power. As the court noted, Congress went out of its way to specify that the penalty is not a tax. Second, the court ruled that it is proper for the plaintiffs to be heard in their challenge to the mandate, which goes into effect in 2014. The court cited extensive precedent showing that when a future harm is certain, courts can act in the present to protect citizens from that harm. The court rejected the argument that the various employer mandates violate the constitutional sovereignty of states; as the court noted, the law simply treats states like other large employers, and so making states provide the same health benefits as other large employers must provide is no different from making states pay the same minimum wage as all other employers.

While federal spending programs may set conditions on grants to states, Supreme Court precedent states that the grants must not be coercive. Here, the court agreed that the states had raised a plausible legal argument which should be allowed to go forward: the health control presents states with the unacceptable choice of massively increasing their own Medicaid spending on millions of more people, or of losing all funding for the traditional Medicaid program. Finally, the court agreed that the challenge to the individual mandate could go forward, because the mandate was “unprecedented.” Never before has Congress attempted to use its power of regulating interstate commerce to force people to buy a particular product. Because there is no judicial precedent in support of such a mandate, the plaintiffs had raised a plausible constitutional challenge which should be allowed to go forward.

The court’s ruling is not a final decision on the constitutional merits, but it is a solid, meticulously researched, and carefully-reasoned decision declaring that the opponents of the health control law have raised legitimate constitutional objections.

Granted this morning, Bond v. United States. Question presented: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” The circuits are split, and defendant was convicted in the 3d Circuit, which sua sponte used standing as the reason to refuse to consider her the defendant’s constitutional argument.

The underlying issue is whether, pursuant to the Chemical Weapons Convention, ratified by the Senate in 1997, Congress can criminalize any non-peacefu use of a toxic substance. Defendant argues that her particular use (to try to injure her husband’s mistress) was not within the reach of any enumerated congressional power.

Former Solicitor General Paul Clement filed the successful petition for a writ of certiorari.

A key issue in the case is this line from Tennessee Electric Power Corp. v. TVA (1939): that legal persons, “absent the states or their officers, have no standing in this suit to raise any question under the amendment.” Some lower courts have treated this as dicta but others have not. Whether or not it’s dicta, the Supreme Court can repudiate or narrow it, and in my view, the Court should. If an individual is going to spend six years in federal prison, that individual should certainly be considered to have standing to challenge the constitutionality of the law under which she is being imprisoned.

The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale), Gillian Metzger (Columbia), and me (Denver, VC). The moderator was Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virgina, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making.

Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28–36 of the opinion. Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” In particular:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must travel, regardless of whether they personally like all of the places its leads.

Balkin makes one error in his criticism of Judge Tauro’s Tenth Amendment analysis of congressional interference with traditional state government functions:

(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist’s “traditional governmental functions” approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that some First Circuit precedents predating Garcia are still on the books, and who knows, maybe the Supreme Court will change its mind!)

That’s not precisely accurate. Judge Tauro structured his opinion around the 1997 First Circuit case U.S. v. Bongiorno, which post-dates (not pre-dates) Garcia. According to Bongiorno:

a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of traditional governmental functions.

The Bongiorno test comes directly from the 1981 Supreme Court case Hodel v. Virginia Surface Mining & Reclam. Ass’n, which is still good law. Judge Tauro plausibly found that DOMA had each of the three Bongiorno ingredients. Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro.